ANANDAN Vs. ARIVAZHAGAN

JUDGEMENT

(1.) THIS revision is filed against the order of the learned Judicial Magistrate, Neyveli, in Criminal M.P. No. 2170 of 1996 in C.C. No. 567 of 1995 dated 7.8.1996 dismissing the petition filed under Section 251, Code of Criminal Procedure, to discharge the petitioners/accused.

(2.) THE petitioners are the accused before the learned Judicial Magistrate for the offence under Section 138, Negotiable Instruments Act. They contended that the second petitioner/second accused did not issued any cheque to the respondent/complainant and he was not a partner of K.S. Muthu Constructions and the respondent had not issued any notice to the second petitioner before the proceeding was initiated under Section 138, Negotiable Instrument Act. Therefore, they contended that the Court below ought not to have taken cognizance of the offence and the complainant contended that the second petitioner is a partner of K.S. Muthu Constructions and the cheque was issued by the first petitioner, that as the second petitioner is a partner of the Company for which the cheque was issued, there is no need to send the notice to the second petitioner individually. The first petitioner had sent a reply notice alleging that there was collusion between the second petitioner and the respondent and with the connivance of the second petitioner, the cheque was presented for collection. It is further alleged that the petitioners moved for transfer of the case, but as they could not succeed, now they have filed this petition to drag on the proceedings and there are no materials to discharge the petitioners.

(3.) THE only averment in the petition filed before the lower Court is that the second petitioner is not a partner of K.S. Muthu Constructions, that the second petitioner had not issued any cheque and therefore, the cognizance taken by the Court below is illegal and the petitioners are entitled to be discharged. When, it is the allegation in the complaint that the first petitioner, as Managing Partner of K.S. Muthu Constructions, issued the cheque in favour of the complainant/respondent herein, the question whether the second petitioner was a partner or not is a matter of evidence that should be considered only at the time of the trial. Therefore, the petitioners are not entitled to raise this point for discharging them. Further, the first petitioner has not given any reason to exonerate him from the offence alleged. Therefore, the Court below was perfectly right in not accepting the reasons given in the petition to discharge the petitioners.